2002 PLP 571 (CLC)

S.A. RABBANI, J.‑‑‑ In Civil Suit No.15 of 2001, three miscellaneous applications were fixed for hearing before a learned Single Judge. That suit has been filed by the present respondents against these appellants. Two applications were filed by the present respondents/ plaintiffs under Order XXXIX, rules 1 and 2, C.P.C. and Order XVIII, rule 18, C.P.C. and the third one was filed by the present appellants for appointment of Receiver under Order XL, rule 1, C.P.C. The impugned order shows that all the three applications were heard and those filed by the respondents/plaintiffs were allowed while order on the application filed by the present appellant for appointment of a Receiver was deferred for report of site inspection. It is stated that site inspection has been carried out in compliance with the order. The present appeal is, therefore, against the order of the learned Single Judge on the application under Order XXXIX, rules 1 and 2, C.P.C. granting interim injunction against the present appellants. Mr. Muzaffarul Haq, learned counsel for the appellants, challenges the sale of the property in dispute in favour of the present respondents on the ground that it was a Wakf property and the Mutawali was not authorized to sell it to the respondents. Mr. Rana Muhammad Ahmed Khan, learned counsel for the respondents, submitted that the respondents/plaintiffs purchased the property under a registered sale‑deed and their ownership is intact as observed in the impugned order. He submitted that, on the basis of their ownership, the respondents/plaintiffs have a strong prima facie case and the balance of convenience is also in their favour. He submitted that the Mutawali was expressly authorized to sell the property and he sold it to the respondents/plaintiffs under that legal authority and the sale is valid. The learned Single Judge has reproduced, in the impugned order, the prayer made in the civil suit, which shows that the suit is for declaration, possession, mesne profits and injunction. It is significant to note that the declaration sought in the suit is not about title or ownership of the respondents/plaintiffs in respect of the property in dispute. The declaration is to the effect that the construction raised by the defendants is liable to be demolished and removed. It is mentioned in the impugned order, that, in the written statement filed by the defendants/present appellants, the title and the ownership of the plaintiffs/respondents has been questioned and the defendants/appellants raised a preliminary objection regarding maintainability of the suit on this ground; It has been observed in the impugned order that the claim of the plaintiffs is based on registered sale‑deed and mutation and, therefore, their ownership is intact and thus, they have a strong prima facie case in their favour. With due deference to the learned Single Judge, we tend to disagree with the view, because in a case where the title and ownership is expressly disputed and challenged by the defendants in their written statement, a registered sale‑deed or mutation in favour of the plaintiff cannot be treated as conclusive proof of their legal right. A sale‑deed or mutation may, of course, be an evidence of the ownership. Despite the fact that the appellants/respondents are disputing the title and ownership of the plaintiffs/respondents, the latter have not sought a declaration about their ownership and title in the suit. Other relief, in the form of injunction, possession and mesne profits being dependant upon ownership of plaintiffs cannot be granted without a declaration about their ownership. Since the plaintiffs/respondents have not sought a declaration of their ownership in the suit, a consequential relief of injunction, permanent or interim, cannot be granted to them. In the circumstances, the preliminary objection regarding maintainability of the suit, should have been decided before any other question involved in the matter. Due to the abovementioned material omission in the prayer clause in the suit, and for the reasons discussed above, the plaintiffs in the suit had no case, prima facie, for grant of an interim injunction in their favour. The appeal is accordingly allowed and the impugned order is set aside. Q.M.H./M.A.K./S‑160/K Appeal allowed.